This
matter is before the Court on the Motion for Summary
Judgment, ECF No. 48, and the Motion to Strike, ECF No. 62,
filed by Defendant David Shulkin (“Shulkin”). For
the reasons stated below, the Motion for Summary Judgment
will be granted and the Motion to Strike will be denied as
moot.

BACKGROUND

Terry
Kennedy (“Kennedy”), the Plaintiff and an
African-American, began working as a Police Officer for the
Police Service of the Veterans Affairs Medical Center in
Omaha, Nebraska (“Omaha VA”), in March 2009. In
January 2011, Kennedy was promoted from Police Officer to
Sergeant, and in January 2012, he was promoted from Sergeant
to Lieutenant. The Police Service Command Staff was composed
of the Chief of Police, Deputy Chief of Police, and two
Captains. As one of four Lieutenants, Kennedy served as a
first-line supervisor to the Sergeants and Police Officers
assigned to his shift. Lieutenants also were generally
responsible for planning daily duty schedules and ensuring
that their shifts were sufficiently staffed to meet the
minimum coverage requirements of the Omaha VA.

In May
2013, the Chief of Police, Mark Kula, was removed from his
position for medical reasons. Thereafter, the Deputy Chief of
Police, Ron Feather (“Feather”), became the
Acting Chief of Police, and Captain Jason Brdicko
(“Brdicko”) became the Acting Deputy Chief of
Police. At that time, the Omaha VA Police Service was
operating with four rotating twelve-hour shifts-two day
shifts (6 a.m. to 6 p.m.) and two night shifts (6 p.m. to 6
a.m.). Roughly every three months, the officers on the day
shifts switched to the night shifts and the officers on the
night shifts switched to the day shifts. One Lieutenant was
assigned to each of the four shifts and, as of May 2013,
Kennedy was assigned a night shift.

Throughout
2013 and 2014, the Police Service struggled with a staffing
shortage after job classification authority was removed from
local VA human resources offices to the Centralized
Classification Unit (“CCU”) in Minneapolis,
Minnesota. There were several vacancies at the Police Service
in 2013 and 2014, but hiring new officers was given low
priority by the CCU. As a result, it took up to eight months
for the Police Service to get a classified position
description from the CCU, which made it difficult to fill
vacancies.

Kennedy
was unhappy with many of the decisions made, and actions
taken, by his supervisors, Feather and Brdicko, between May
2013 and February 2014. He resigned from his position on
March 22, 2014, and accepted another position with the Office
of Security and Law Enforcement in Little Rock, Arkansas.

Proposed
Changes to Kennedy's Shift, Hours, and Schedule

On July
8, 2013, Captain Ross Venditte sent out an email with new
shift assignments and Kennedy was again assigned to the night
shift, even though his shift was scheduled to rotate to the
day shift on or about July 8. His shift was also assigned one
less officer than the other three shifts. However, the new
assignments were never implemented. Instead, Feather and
Brdicko proposed a permanent schedule that consisted of three
ten-hour shifts, rather than four rotating twelve-hour
shifts. The three shifts included a day shift (6 a.m. to 4
p.m.), a swing shift (11 a.m. to 9 p.m.), and a night shift
(8 p.m. to 6 a.m.). The proposal was put to a vote and the
officers approved the three-shift schedule which was
implemented in early August. At that time, the Police Service
had only three Lieutenants on staff and each was able to
choose a shift based on seniority. Kennedy was given the
swing shift, his second choice. Due to staffing shortages,
however, the swing shift was given one less officer than the
other shifts, because the swing shift overlapped with the
other shifts on all but four hours. Kennedy was unhappy about
the initial proposal to extend his tour on the night shift
and the decision to provide the swing shift with fewer
officers.

Even
after switching to the three-shift schedule, the Police
Service continued to have staffing problems, particularly on
the swing shift. In early November 2013, Feather and Brdicko
proposed altering the swing shift hours to 2 p.m. to 12 a.m.
in order to ensure minimum coverage. The altered hours were
set to begin on December 2, 2013, but this proposal was not
implemented after some of the swing-shift officers expressed
concerns.

On
February 4, 2014, Feather and Brdicko suggested another
change to Kennedy's schedule in order to address
persistent staffing problems. They decided to change
Kennedy's days off from Saturday, Sunday, and Monday, to
Tuesday, Wednesday, and Thursday. This schedule change,
however, also was not implemented.

Kennedy
contacted an Equal Employment Opportunity (“EEO”)
Counselor on February 5, 2014, regarding his concerns that
Feather and Brdicko were discriminating against him based on
his race and retaliating against him for prior complaints to
an EEO counselor.

Vacant
Captain Position

When
Brdicko became Acting Deputy Chief of Police in May 2013,
Feather decided to have the Lieutenants on the day shift fill
Brdicko's vacant Captain position because it was a day
shift position. This arrangement lasted for one month before
Feather decided that he, Brdicko, and the other permanent
Captain, Ross Venditte, would cover the vacant Captain
position's responsibilities, rather than the Lieutenants.
Kennedy was on the night shift and not given an opportunity
to rotate into the Captain position during that time. On July
22, 2013, Kennedy contacted an EEO counselor because he was
not promoted to Acting Captain and not temporarily rotated
into the vacant Captain position.

Off-Duty,
Part-Time Employment

At some
point “[i]n the fall of 2013, ” Kennedy and
several other Omaha VA Police Service officers were
terminated from their part-time employment as security guards
at No Frills Supermarket after Feather called the store
manager to inquire about their job duties there. Def.'s
Br. Summ. J., ECF No. 51, Page ID 549. Feather claims that
the store manager explained the security jobs required the
authority to enforce state and city ordinances on No Frills
Supermarket property, as well as the use of federally issued
police credentials. Feather claims he then informed the store
manager that VA Police Officers have no authority to enforce
state law or city ordinances and that it is contrary to VA
policy for them to use their police credentials in their
employment with No Frills Supermarket. Kennedy disputes
Feather's statement and claims that Feather sought to
have him fired for racial and retaliatory purposes. Kennedy
Aff., ECF No. 59-1, Page ID 647 ¶ 7 & Page ID 653
¶ 28. Kennedy again contacted an EEO counselor, on
December 5, 2013, regarding Feather's contact with his
part-time employer.

CCTV
and Eleventh Floor Access

Also in
the fall of 2013, Feather sent an email to all Lieutenants
and Sergeants instructing them to stop using an office
located on the eleventh floor of the Omaha VA facility. On
November 7, 2013, Feather asked that Kennedy and other
officers return their keys to that office, but Kennedy
didn't return his keys and continued to use the office.
Accordingly, Brdicko continued to send out emails instructing
officers to stop using the eleventh floor office.

On
January 31, 2014, Feather temporarily suspended access to the
closed-circuit television (“CCTV”) for all
Lieutenants, Sergeants, and Police Officers to investigate
potential violations of the CCTV policy. After an
investigation was conducted, access was restored to all
Lieutenants, Sergeants, and Police Officers. Kennedy
perceived Feather's decision to revoke eleventh floor and
CCTV access as both discriminatory and retaliatory.

Miscellaneous
Conflicts

On one
occasion, Kennedy reported another officer to the Command
Staff for threatening a co-worker. In his affidavit Kennedy
stated “I believe that Acting Chief Feather told [the
reported officer] about my report, ” and that the
reported officer became “insubordinate” toward
Kennedy as a result. Kennedy Aff., ECF No 59-1, Page ID 651
¶ 22. Kennedy claims that Feather then deliberately
chose not investigate the reported officer in an effort to
discriminate and retaliate against Kennedy. He further claims
Feather and Brdicko regularly refused to communicate with him
and that on another occasion, they “barg[ed] into an
office where [Kennedy] was conducting training with [another
officer]” in an effort to “gather dirt” on
him. Kennedy Aff., ECF No. 59-1, Page ID 648 ¶ ...

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